The Advocate General of the European Court of Justice has delivered his opinion in the Digital Rights Ireland challenge to the Data Retention Directive.

He says:

I propose that the Court should answer the questions referred by the High Court in Case C 293/12 and the Verfassungsgerichtshof in Case C 594/12 as follows: (1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use. (2) Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years.

Owing to the nature of the organisation and the serious implications for every person in the country of the mass surveillance implied by Europe’s Data Retention regime, Digital Rights Ireland was granted a special status by the Irish High Court. It was permitted to take an ‘actio popularis’, meaning it was recognised as having standing to bring its challenge on behalf of all the citizens of Ireland.

We act for Digital Rights Ireland.

This case started in Ireland’s High Court in 2006 and was referred to the ECJ in 2010 by Judge McKechnie to allow the European court to rule on a number of questions relating to the interpretation of European law.

The case was joined with a case referred from Austria ‘Seitlinger and Ors’, which was also challenging the Data Retention directive. Both cases were heard together in July of 2013 (transcript of our submissions to the court)

Today’s opinion is not the judgement of the Court, but represents a very persuasive indication of the court’s possible final judgment.

If the ECJ follows the Advocate General’s example, it will mean that the European Data Retention Directive will have been struck down for all citizens of the European Union and that local laws are open to challenge in local courts. Regardless of the final judgement, Digital Rights Ireland’s case will return to the Irish High Court to continue, once the decision on the European Law dimension of the matter has been settled.